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Conlin v. Ru Cliff, LLC

United States District Court, D. Utah, Central Division

November 6, 2019




         Plaintiff Kaylee Conlin rented an apartment from Defendants RU Cliff, Rize Homesource, and Jon Neviaser (the Landlord Defendants). When she brought her dog Buckley to live in her apartment (Buckley is a companion dog who helps reduce her anxiety), she was threatened with eviction for violating the lease agreement's no-pet provision and was given instructions on how to obtain approval to keep Buckley. That approval required completing forms provided by Defendants Law Offices of Kirk Cullimore and attorney Kirk Cullimore (Defendants or Cullimore Defendants) to the Landlord Defendants. She ultimately received approval to keep Buckley, but her lawsuit asserts that the process, and the Cullimore Defendants' forms that dictated that process, violated her rights under the Fair Housing Act (FHA).

         Ms. Conlin asserts seven claims in her complaint, but only three remain because the Landlord Defendants have been dismissed. The remaining claims-the fourth, fifth, and sixth- allege disparate impact, disparate treatment, and failure to provide a reasonable accommodation, all in violation of the FHA.

         The Cullimore Defendants have moved for summary judgment on those three claims, arguing that they owe no duty to Ms. Conlin under the FHA and that she suffered no harm. Ms. Conlin opposed the motion and filed a motion under Rule 56(d) of the Federal Rules of Civil Procedure asking the court to stay a decision until she could depose the Cullimore Defendants. She also filed a motion for leave to amend her complaint and for an extension of time to file dispositive motions. The court held a hearing on October 30, 2019.

         Now, for the reasons set forth below, the Motion for Summary Judgment is GRANTED IN PART AND DENIED IN PART, the Motion for Leave to File Amended Complaint is GRANTED, the Rule 56(d) Motion is DENIED AS MOOT, and the Motion for Extension of Time to File Dispositive Motions is GRANTED.

         RULE 56(D) MOTION

         After the Cullimore Defendants filed their summary judgment motion, Ms. Conlin filed her Rule 56(d) Motion to Deny or Defer Consideration of the Cullimore Defendants' Motion for Summary Judgment. She said she could not fully respond to the motion for summary judgment until she had deposed the Cullimore Defendants.

         The court was scheduled to hear the motions in July 2019. But the parties agreed to continue the hearing so Ms. Conlin could conduct discovery before opposing the motion for summary judgment. Ms. Conlin took the depositions in June 2019 and the parties filed supplemental briefs on the summary judgment issues. Accordingly, as Ms. Conlin confirmed at the court's October hearing, the Rule 56(d) Motion is moot.


         The Motion for Summary Judgment targets Ms. Conlin's claims under the FHA for disparate impact, disparate treatment, and failure to provide reasonable accommodation.

         Summary Judgment Standard

         “The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). “A fact is ‘material' if, under the governing law, it could have an effect on the outcome of the lawsuit. A dispute over a material fact is ‘genuine' if a rational jury could find in favor of the nonmoving party on the evidence presented.” Tabor v. Hilti, Inc., 703 F.3d 1206, 1215 (10th Cir. 2013) (internal quotation omitted)).

         “If the movant meets this initial burden, the burden then shifts to the nonmovant to set forth specific facts from which a rational trier of fact could find for the nonmovant.” Talley v. Time, Inc., 923 F.3d 878, 893-94 (10th Cir. 2019) (internal quotation omitted). Should the nonmovant bear the burden of persuasion at trial, “[t]hese facts must establish, at a minimum, an inference of the presence of each element essential to the case.” Id. (quoting Savant Homes, Inc. v. Collins, 809 F.3d 1133, 1137 (10th Cir. 2016)).

         When evaluating a motion for summary judgment, the court must view the facts and draw all reasonable inferences in favor of the non-moving party. Tabor, 703 F.3d at 1215. But this is only true insofar as “there is a ‘genuine' dispute as to those facts.” Scott v. Harris, 550 U.S. 372, 380 (2007). “Where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no ‘genuine issue for trial.'” Id. (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-587 (1986)).

         Ms. Conlin's Claims

         Ms. Conlin's claims concern the lease agreement's written policy about pets and the forms Ms. Conlin's landlord provided to her. The Defendants, who were legal counsel to the landlord, drafted the lease agreement and the three forms, which consist of the “Affidavit and Request for Companion Animal Form, ” the “Animal Identification Form, ” and the “Medical Request for Companion Animal.” The lease provision titled “Animals” is also at issue. That section sets rules about animals kept by every resident, but also contains specific language addressing companion animals:

Resident may not keep, allow, or maintain animals of any kind on or near the premises for any length of time without the prior written consent of Owner. For any violation of this provision, in addition to Owner's other remedies, Owner may charge and collect the sum of $50 per day, per violation. All costs of cleaning, de-fleaing or other damage or loss suffered on account of a violation of this section shall be promptly paid to Owner by Resident. Violation of this provision will allow Owner to commence eviction on the basis of nuisance without any further notice or opportunity to cure. Resident is required to get approval for any companion or service animal PRIOR to the animal coming onto the premises. Failure to obtain approval is a significant violation of this agreement which shall allow for immediate eviction. Owner may create and maintain such rules and regulations relating to animals as Owner, in its sole discretion, determines appropriate.

         (Residential Rental Agreement at 6-7, ECF No. 93-5 (underline emphasis added).)

         On the afternoon of Tuesday, November 24, 2015, Ms. Conlin's landlord, who had just discovered that Buckley was living in the apartment, sent Ms. Conlin an email with the Cullimore Defendants' forms attached and told her to fill out and return the forms to him no later than November 30, 2015. Before he sent her the email, he told her she had three days to vacate the apartment and pay “the full amount of the next seven month's [sic] rent.” (Nov. 23, 2015 email from Ms. Conlin to Jon Neviaser, Ex. 8 to Mot. Summ. J., ECF No. 93-8.) He later said that although she still had three days to move out, she only had to pay rent for two months.

         The Affidavit and Request for Companion Animal Form required her to swear that she qualified as “handicapped” under the definition provided and that she was or had been “under the care of a medical professional for [her] disability; or have been so diagnosed with a permanent disability to no longer require medical supervision.” (Ex. 2 to Mot. Summ. J., ECF No. 93-2.) It also required her to confirm that the “requested companion animal is necessary to provide assistance” with her disability, indicate the “anticipated length” of her disability, and provide the name and number of her primary physician. (Id.)

         The Medical Request for Companion Animal Form required her doctor to certify that she is handicapped and agree to testify about that diagnosis in court. It also analogized the assistance animal to a prescription.

         The Animal Identification Form told her to describe “any special training or certification” of Buckley and to state whether he had “ever been reported to authorities for any incident or for any reason.” (Ex. 3 to Mot. Summ. J., ECF No. 93-3.) She was also told to submit a photograph of Buckley and proof of his vaccinations.

         Although Ms. Conlin's landlord gave her six days to complete the forms, that six-day period spanned the Thanksgiving holiday weekend. Thanksgiving fell on November 26th, just two days after Ms. Conlin was given instructions on how to obtain approval to keep Buckley. And she was required to submit the completed forms by 5:00 p.m. on November 30, 2015, the Monday after the Thanksgiving weekend.

         On Monday the 30th, Ms. Conlin responded to the landlord, but she did not provide the forms. Instead, she provided a note from her physician. Later that day, the landlord granted Ms. Conlin's request to keep Buckley as a companion animal. Ultimately she was not required to fill out the forms.

         Ms. Conlin asserts that she was harmed when her landlord told her to comply with the requirements set forth in the forms the Cullimore Defendants crafted, copyrighted, promoted, and distributed to landlords (including non-client landlords) throughout the country. According to Ms. Conlin, those documents purposely contained incorrect and misleading information about what the law requires, imposed obligations that went above and beyond what is required by someone seeking approval to have a companion animal, and were designed to intimidate, harass and deter a disabled person requesting a companion animal.

         Each of Ms. Conlin's claims against the Cullimore Defendants asserts violations of two FHA provisions: 42 U.S.C. §§ 3604(f)(2) and 3604(f)(3)(B).[1] Claim Four asserts a violation of the FHA for “creating and utilizing forms which are impermissibly burdensome and discriminatory[.]” (Compl. ¶ 64, ECF No. 2.) Claim Five alleges an FHA violation for “creating and requiring forms that require intrusive amounts of information that is unnecessary to evaluate a request for reasonable accommodation.” (Id. ¶ 70.) And Claim Six, also alleging a violation of the FHA, says the Defendants are liable for “creating and utilizing forms that contain misleading and inaccurate information regarding reasonable accommodations.” (Id. ¶ 76.)

         FHA Provisions at Issue

         1. Disparate Treatment and Disparate Impact Under § 3604(f)(2)

         The first provision, 42 U.S.C. § 3604(f)(2), says it is unlawful “[t]o discriminate against any person in the terms, conditions, or privileges of sale or rental of a dwelling, or in the provision of services or facilities in connection with such dwelling, because of a handicap[.]” This section imposes liability for intentional discrimination, also called, “disparate treatment, ” and, alternatively, discriminatory effect, also referred to as “disparate impact.” Cinnamon Hills Youth Crisis Ctr. v. Saint George City, 685 F.3d 917, 919 (10th Cir. 2012); Bangerter v. Orem City Corp., 46 F.3d 1491, 1501 (10th Cir. 1995) (“It is widely accepted that an FHAA violation can be demonstrated by either disparate treatment or disparate impact.”). “A disparate impact analysis examines a facially-neutral policy or practice, such as a hiring test or zoning law, for its differential impact or effect on a particular group. Disparate treatment analysis, on the other hand, involves differential treatment of similarly situated persons or groups.” Bangerter, 46 F.3d at 1501 (quoting Huntington Branch, NAACP v. Town of Huntington, 844 F.2d 926, 933 (2d Cir. 1988)) (emphasis added).

         A disparate impact claim “doesn't require proof of intentional discrimination.” Cinnamon Hills, 685 F.3d at 922. “To prove a case of disparate impact discrimination, the plaintiff must show that a ‘specific policy caused a significant disparate effect on a protected group.'” Id. (quoting Reinhart v. Lincoln Cty., 482 F.3d 1225, 1229 (10th Cir. 2007)). “This ‘is generally shown by statistical evidence … involv[ing] the appropriate comparables' necessary to create a reasonable inference that any disparate effect identified was caused by the challenged policy and not other causal factors.” Id.

         On the other hand, a disparate treatment claim concerns intentional discrimination. “There are two ways to prove intentional discrimination (or ‘disparate treatment').” Id. at 919. The plaintiff may provide direct proof of discriminatory intent, or the plaintiff may point to circumstantial evidence and then apply the burden-shifting framework set out in McDonnell-Douglas Corp. v. Green, 411 U.S. 792 (1973). Id.

         2. Reasonable Accommodation Under § 3604(f)(3)(B)

         In addition to prohibiting disparate impact and disparate treatment, the FHA includes a provision-§ 3604(f)(3)(B)- requiring reasonable accommodation of a person's disability. Discrimination on the basis of a “handicap” includes “a refusal to make reasonable accommodations in rules, policies, practices, or services, when such accommodations may be necessary to afford such person equal opportunity to use and enjoy a dwelling[.]” 42 U.S.C. § 3604(f)(3)(B).

         Defendants' Opposition

         The Defendants emphasize that Ms. Conlin did not have direct communication with them. They also point out that they did not decide whether to accommodate Ms. Conlin's request to keep Buckley in her apartment. And in a large portion of their briefs, they state that they provided the forms solely in their capacity as legal counsel for the Landlord Defendants.

         In their motion, they make the following arguments: (1) the FHA does not impose liability on an attorney for giving legal advice to a client; (2) Ms. Conlin's request for accommodation was granted; (3) she cannot show disparate impact;[2] and (4) she cannot show disparate treatment.[3]

         1. Attorney-Client Relationship

         Defendants repeatedly emphasize that they cannot be liable under the FHA for advice they gave to their client. But Ms. Conlin expressly states that her claim does not focus on the attorney-client relationship between the Cullimore Defendants ...

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